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Legal Advice and Government Accountability

Friday, May 9th, 2008

Robert Wechsler

Elizabeth Wolgast’s 1992 book, Ethics of an Artificial Person: Lost Responsibility in Professions and Organizations, raises some very important government ethics questions. I will deal with just one of them here.

The term “artificial persons” includes lawyers and government officials who are considered to act in the name of others. Wolgast’s book looks at the problems such artificial persons cause with respect to our ordinary views of such ethical issues as responsibility and accountability.

Government lawyers are almost never considered accountable for what they do. Nor are those who accept their advice. It is the number one way in which ethical issues are improperly handled. An official sees there might be a problem, he goes to a government lawyer for advice (even when the official is himself a lawyer), the government lawyer says it’s okay to proceed, even when there is at least a clear appearance of impropriety, and the official proceeds. The official says he acted on advice of counsel, so he’s home clear. The lawyer says she gave the advice she thought was correct, so she’s home clear.

Wolgast’s central point is that our ethics is based on one person acting for himself, not one person acting for another. When two people are brought into the ethics equation, especially in the official-lawyer relationship (which also contains the protection of the attorney-client privilege), our ethical views, not to mention our ethics laws, are undermined.

We have the choice either to change our ethical views, to not feel people should be responsible for their actions, or to change our institutional arrangements. The important institutional question here is: should advice of counsel let a government official off from being responsible for decisions and actions, even when the lawyer works for the government official?

I’ve raised this issue before, with respect to a case decided by the California Supreme Court, which concluded, “An official cannot escape liability for conflict of interest violations by claiming to have been misinformed by an employee serving at her pleasure.” The employee, in this instance, was an attorney, who gave poor advice on an ethical issue.

What the California Supreme Court said, effectively, was that officials are responsible for what they do, and that following advice of their employees does not permit them to escape this responsibility.

Because our personal ethical views see this two ways, most of us are confused as to whether this is a good decision or not. We believe in individuals taking responsibility for their actions, not to mention government officials being held accountable, but we also believe that officials should be able to act on the advice of counsel, because that is a normal part of government protocol. It is therefore hard to accept ether that an official has no responsibility or that he can’t depend on legal advice he is given. What the California Supreme Court decided is that an official is responsible for how he deals with the advice of an employee, including that of a lawyer.

This is consistent with the way we ordinarily view ethics. No one thinks that I can excuse myself from stealing money because someone told me it was okay to do this. There are, certainly, some very complicated legal issues, but government ethics issues, although often complex as well, can be simply decided: if it looks or feels bad, don’t do it. No one really needs to rely on a lawyer, although it might be appropriate to seek advice, to know whether it is clearly illegal, possibly illegal, or a matter of appearance. A lawyer's advice (or a government ethics professional's advice) on ethical issues is more important for considering the options and being able to explain why one has done what one has done, than it is for actually making the decision.

The other alternative consistent with government accountability is to hold the lawyer responsible for poor advice. But since the lawyer does not act, and does not have a conflict, she is not seen as the responsible party. She is responsible for giving good advice, but if she gives bad advice, she is not responsible for the act based on it. However, she can be disciplined or fired for doing poor work.

But in so many instances I’ve seen, it isn’t a matter of giving poor advice, it's a matter of giving the advice asked of her, so that an official has an excuse to act the way he wants without being held accountable. I feel that we need to change the way we view an official’s responsibility in such a situation, in order to prevent this from happening.

Wolgast has a lot to say about the lawyer’s responsibility in this sort of situation, but I’ll deal with that another time.